Ed. Dept. Seeks to Halt Texas' Special Education Enrollment Benchmark

The U.S. Department of Education has told Texas to stop using 8.5 percent as a guideline for special education enrollment, in the wake of a report from the Houston Chronicle that suggested identification rates across the state were artificially kept low.

In "Denied: How Texas Keeps Tens of Thousands of Children out of Special Education," Houston Chronicle reporter Brian M. Rosenthal wrote that the state set 8.5 percent as a target for special education enrollment about 10 years ago, and strictly audited school districts that went above that percentage. The state said that the percentage was meant to be seen as a guideline, not a hard cap, though Rosenthal quoted several district-level officials who said it was effectively considered a limit. Texas has one of the lowest identification rates for special education, at 8.5 percent, compared to about 13 percent nationwide.

The newspaper report raises "serious concerns" about Texas' compliance with the Individuals with Disabilities Education Act, said Sue Swenson, the acting assistant secretary of the office of special education and rehabilitative services, in a letter to Texas education chief Mike Morath.

The Oct. 3 letter from Swenson also revealed that OSERS hadbeen in contact with Texas officials in 2014, two years before the Houston Chronicle investigation, because of a complaint it had received from the advocacy group Disability Rights Texas on a related matter. The department was told that the 8.5 percent benchmark was meant to address concerns that some districts were erroneously identifying many students as needing special education services. The benchmark was not meant to stop districts from providing services to children who really needed them, Texas officials told the Education Department.

Within 30 days, Texas must submit a letter to the Education Department with several steps it will take to address the Houston Chronicle's report. Those steps must include:

Discontinuing the use of any cap, unless the state can prove that it did not result in children being denied for services who qualified for them;

Ensuring that districts identify, locate and evaluate all children suspected of having a disability;

Determining which districts might have discouraged or refused to act on special education referrals, and how those districts will remedy those past practices;

Informing all districts that they may not deny or delay referrals in order to meet the 8.5 percent standard.

The department also said it would follow up with Texas on other state monitoring standards that may be problematic.

"The [U.S. Department of Education's] demand for a response from the Texas Education Agency is a first step toward resolving this issue," Disability Rights Texas told Rosenthal. "However, there remains much more work to ensure that children with disabilities are not wrongfully excluded from a free and appropriate public education."

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